ON appellant’s motion for rehearing.
DAVIDSON, Judge.Appellant vigorously assails the correctness of the conclusion of the majority of this court that the facts developed upon the motion for new trial did not show jury separation nor conversing with the jury under the provisions of, and as contemplated by Arts, 668 and 671, C. C. P., respectively.
The facts touching the questions at issue are set forth in the original opinion and need not here be restated. In so far as the facts relate to the issue of the jury separation, it appears that the juror Finney separated himself from the remainder of the jurors and went a distance of some twenty or twenty-five feet, to a news stand, where he purchased a newspaper. During all of this time, he was in the view of the deputy sheriff, who had the jury in charge. There is an absence of any proof that any conversation took place between the juror . and any other person or that anything was said or done that might have been or was prejudicial to the appellant. In fact, the juror says that there was not, and the deputy sheriff strongly corroborates him. Mere temporary separation of a juror from the remainder of the jurors does not constitute jury separation as contemplated under the provisions of Art. 668, C. C. P.
*96We remain convinced that the facts presented do not show jury separation such as would require the granting of a new trial. In support of this conclusion, we call attention to the following cases: Patterson v. State, 293 S. W. 570, 106 Tex. Cr. R. 553; Parker v. State, 77 S. W. (2d) 532; 127 Tex. Cr. R. 454; Cernoch v. State (a death penalty), 81 S. W. (2d) 520, 128 Tex. Cr. R. 327.
Touching the question of conversing with the jury, or a conversation indulged in by a juror, as contemplated by Art. 671, C. C. P., it is now the settled rule that, where it is made to appear that a conversation has occurred between a member of the jury and some person other than as authorized under the provisions of said statute, the State must show that the accused was not injured or prejudiced thereby. Such showing, however, is not accomplished by the testimony of the juror alone. There must be testimony other than that of the juror showing that the accused was not injured or prejudiced by the conversation so had. The authorities supporting the rule are cited in the prior opinions herein.
Appellant attests the correctness of the rule, and insists that, under the facts here presented, the State has not discharged the burden resting upon it of showing non-injury, outside of, and other than by, the testimony of the juror. He insists that the testimony showing a conversation between the juror Finney and Townes, Wilkins, and Currin, while the juror was in the jury room and the other named parties were outside the building and across the street, comes within the rule stated.
As to the conversation with Townes, the State discharged the burden of showing non-injury to the appellant, because Townes testified, and, by his testimony, not only corroborated Finney’s statement as to the subject matter of the conversation but attested the fact that appellant was in no manner injured thereby. The conversation with Townes did not, therefore come within the statute mentioned, and did not authorize or require the granting of a new trial.
Appellant is, therefore, relegated, in his contention, to the conversation alleged to have occurred between the juror Finney and Wilkins, and between Finney and Currin.
*97It must be borne in mind that what was said by the parties was in a loud tone of voices and was while they were some distance apart. There was nothing secretive or subdued about what was said or about the statement so made. When analyzed, the • statement made by Wilkins to Finney was ex parte, because Finney made no reply thereto, but merely laughed. The statement of Finney to Currin, asking that Currin call the bakery and have them send his pipe to him, was not replied to by Currin. Nor is it shown that Currin said anything to Finney.
Do these statements, under the circumstances pointed out, constitute a conversation, within the meaning of Art. 671, C. C. P.? We adhere to our former opinion that they do not; and, in support of that conclusion, attention is called to the case of Patterson v. State, supra, where a juror, in passing, spoke to a person, and no reply was made by the person. It was there held that such did not constitute a conversation between the parties within the meaning of the statute mentioned.
The term, “to converse with a juror,” as used in Art. 671, C. C. P., is construed to mean something more than mere salutations or ex parte statements.
Applying such construction to the facts here presented, the conclusion is reached that a conversation by or with a member of the jury, within the meaning of Art. 671, C. C. P., is not shown. .
From what has been said, it follows that we remain convinced that reversible error is not reflected by this record, and the appellant’s motion for rehearing is overruled.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.